SHAIK ANISUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 637/2021

[2026] HKCFI 1237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 637 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended, naming only the Director of Immigration as the Putative Interested Party

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 6 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 22 April 2021 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 24 July 2018.

2.  I amend on my own volition the Form 86 to name only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application. When asked whether he had anything to add, he said that he was applying for legal aid. I directed that this application would continue to be proceeded with. The high standard of fairness does not grant the Applicant an absolute right to free legal representation or interpretation services at all stages of the proceedings. (Re  Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmed Syed Rafiq [2018] HKCA 178 at §22; Akhondo Shakil [2021] HKCA 1616 at §20[10]; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21-25 and [2022] HKCA 230 at §§16-17).

Background

4.  The Appellant is a national of India. In gist, he fears he fears ill-treatment by his business partner, because the Applicant has failed to repay money his business partner invested. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant’s affirmation attached a document titled “Grounds on which relief is sought”, which sets out in detail various purported grounds. However, notwithstanding the length of the document, such purported grounds are vague and devoid of substance, and, in truth, did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision. This Court has seen these pro forma grounds many times.

9.  Such grounds, in gist, boil down to the following 2 parts:

(1)  The 1^st part contains general accusation that the TCAB “is in breach of procedural fairness” in various ways. They are general because the grounds did not, in truth, identify or sufficiently identified the TCAB’s errors. E.g. ground 4 alleges that “[the TCAB] failed to meet the greater care and duty owned to a self-represented claimant” without stating why that was the case;

(2)  The 2^nd part contains a repetition of the assertions the Applicant had already made before the TCAB.

10.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [10-82]. In particular, it is clear that the TCAB undertook a careful and nuanced approach: notwithstanding that his evidence was in part inconsistent and was contradicted by contemporaneous records [49-51], the TCAB accepted various aspects of the Applicant’s case e.g. [48, 53]. However, the TCAB, correctly in my view, found that there was no credible evidence to suggest that his business partner being a member of the TMC played any part in the dispute, and the harm the Applicant suffered arose solely from the business dispute and not for a Refugee Convention reason [54]. Importantly, the fact that the Applicant did return to India on a few occasions, and the fact that he had no difficulty in staying in India or going in and out of it, showed that (1) his alleged fear of returning to India was no genuine and (2) he was not a target of the authorities [56, 62]. The TCAB had also, correctly, relied on country of origin information when arriving at its conclusion that he would receive adequate state provision [58, 59], and that relocation was viable [74-81].

11.  I cannot see that the TCAB had committed any of the alleged errors stated in the Applicant’s grounds. The Applicant’s case mainly failed on the facts and his lack of supporting evidence. In particular, the TCAB applied the correct principles (cf. grounds 2, 3, 4, 5, 6, 9, 11) and did not use outdated authorities (cf. ground 10). It paid meticulous attention to the Applicant’s evidence and made nuanced findings (cf. grounds 7, 8), and had considered all the factual matters the Applicant raised in the grounds, as stated above.

12.  I have also carefully considered the Applicant’s oral submissions. As stated above, they do not assist the Applicant.

13.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1